Marina Abramović meditation piece in ‘The Temptation of AA Bronson’ at the Witte de With, Rotterdam, Sept. 2013–Jan. 2014 (photo by Mark Sheerin/Hyperallergic)

When I read about Marina Abramović’s volunteer advertisement on the New York Foundation for the Arts (NYFA) website last week, it got me thinking about how many arts nonprofits employ the law to their benefit, and many times against an ethical grain.

According to the New York State Department of Labor fact sheet on wage requirements for interns in not-for-profit businesses, “There is no section of the Labor Law that exempts ‘interns’ at not-for-profit organizations from the minimum wage requirements.” Although there is no “interns” category per se, Labor Law does carve out three categories of workers that may be excepted from minimum wage requirements. The three categories are volunteers, students, and trainees/learners, and apply only to not-for-profit organizations or institutions set up and operated exclusively for charitable, educational or religious purposes.

Presumably the Marina Abramovic Institute (MAI) was established for an educational purpose. Assuming that, it seems that the main question would be whether these “volunteers” sought by MAI are replacing or augmenting paid staff and whether they are being required to work certain hours, among other factors. These same “volunteers” could be classified as trainees/learners, but given that the NYFA job ads detail a need for applicants who come to the MAI with a certain set of skills, there doesn’t seem to be any indication that these “volunteers” would be given supervised formal instruction or on-the-job training. And unless they’re students — or recent students — enrolled in a degree, diploma, or certificate granting institution, the above would still apply.

One other related thought is why NYFA publishes such job advertisements. Even if there are no legal repercussions, one would hope NYFA’s internal policies would be a bit more stringent so as to not perpetuate and condone any exploitative labor practices.

Although it may seem that MAI (and many other arts nonprofits) may be legally within their bounds, the question is whether the current legal framework should be exploited by those who purport to represent and support artists and other cultural producers. I recall back in 2005, as a fellow for the Center for Constitutional Rights, hearing from a colleague how then-Judge (now U.S. Supreme Court Justice) Sotomayor, during oral arguments that summer, once asked one of the attorneys: “Just because you can, does that mean you should?”

The author is an artist and arts lawyer in New York.

Sergio Muñoz Sarmiento is an artist, writer and arts lawyer interested in the relationship between art and law. He currently teaches contemporary art & law at Fordham Law School. You may follow his...

14 replies on “Just Because You Can Doesn’t Mean You Should: On Marina Abramović and Unpaid Work”

  1. people are always going to try to use free labor if possible. you can’t force somebody to work for free, but if they volunteer, I think the responsibility falls on the person volunteering. I remember volunteering at the tribeca film festival and they had a couple hundred volunteers doing work ranging from selling tickets and answering questions about the movies. I thought it was a bunch of crap work so I just walked out. You are not obligated to work for them if there is no pay involved. Some people might think they are furthering their career by volunteering with Marina and if they can’t figure out that its just free labor, they deserve to not get paid.

    1. A good overview of the larger issues at hand beyond ‘… if they can’t figure out that its just free labor, they deserve to not get paid.’

      Especially this: “In a long blog post about his story in the New York Times, Greenhouse quotes professor David Yamada of the Suffolk University Law School in Boston who said a point missing from the article was, “the fact that unpaid internships have huge social class impacts on folks who cannot afford to work for free, reinforcing economic barriers to certain professions long associated with the well-to-do.”

  2. People here talk about “art workers” as if they’re coal miners rather than privileged kids with art history degrees from private schools. I see no reason for MAI to pay when there’s an oversupply of entitled kids who don’t need to earn money and never will. There is nothing exploitive about having people do work they want to do and will do for free.

    1. Respectfully, I think you’re missing the point. As Bryan summarized in this thread, unpaid positions encourage social immobility in the arts because only the privileged can afford to take them. This is then reflected in the demographics of the art industry as a whole.

      If hardworking individuals from lower socio-economic backgrounds want to step up and contribute, there should be protections in place to support them, and this starts with the employer. If the MAI wants to foster a “community” as it claims on its website, then it needs to set the example.

      1. “…step up and contribute”

        Step up and contribute to what?

        Kids from lower socio-economic backgrounds, if they go to college, aren’t going to get majors that will never lead to a good job. An assistant curator at the Guggenheim makes less than the average plumber in New York. The first must have two degrees, the second none.,17.htm

        Let’s say MAI’s Research intern position paid $50/hr instead of nothing. What kid from a lower socio-economic background has “college-level background in art history, performance art, and/or performance art studies”?

          1. Lower socio-economic backgrounds I wouldn’t equate with working class. Maybe others would. Did either of your parents go to college, especially your mother? (You don’t need to answer that.) The reason college applications ask for the parents’ level of education is because it indicates scholastic aptitude in the applicant. They look more closely at the mother’s education.

          2. My mother didn’t finish high school (she isn’t from the USA, and is old enough to be my grandmother, so there is no direct comparison to a US high school education for her.) She’s currently a part time janitor at a fast food restaurant. My father did finish high school, but not college, he was career military (now deceased). I earned arts degrees from Parsons (BFA) and Yale (M.Arch) and it was a fight to earn those degrees and keep myself in school. I had to do night jobs, freelance, weird odd jobs, take time off to earn money, and donated eggs four times, to be able to financially support my mother and godmother while also affording my educations and funding my own participation in the several “prestigious” but un- or low- paid internships that have now, finally, accumulated to something that benefits my current salary and position.

            When I was in grad school, I was scolded and even targeted for harassment by multiple faculty members, because they saw me taking time to earn income as evidence that I was “not committed to my education because you aren’t focusing on it full time” and that I had “bad priorities.” Education and work are hard and stressful even if your parents are paying your rent; it’s an extra pile-on if they aren’t, and it’s REALLY a pile-on if you have dependents in addition to yourself to support, and REALLY REALLY REALLY if not only are you doing that work, but actively being harassed for doing it, by the people who are in charge of determining if you pass or fail.

            I don’t regret any of the choices – to be educated where I was, to work where I have, and to do what was necessary to do those things. But it was different from what the vast majority of my peers had to do. Yes, I was rare among my classmates. Most of their parents had finished not only high school but college, and were at least middle class. Even those who weren’t providing much/any financial support could at least assure their kids that there would be a house to come back to if they flunked out, and could provide guidance about stuff like how to behave when working in an office. They (classmates, faculty and administrators) didn’t comprehend the notion of not being able to just borrow money from family if an expense suddenly came up. The financial aid office acted like they’d never encountered a student who *supported* their parent before – they very well may have not.

            I do feel that unpaid internships are designed to systematically prevent people like me from holding higher-responsibility positions in the arts.

            As far as the salaries, there’s SO much to unpack there. For one, plumbers are and have been unionized for a while. The arts have not had such great success in mobilizing that kind of solidarity, yet. There are tons of blue and pink collar jobs in the arts, such as security, administration art handling and transport, etc. But it hasn’t happened.

          3. Thank you for sharing your story.

            There is little for me to disagree with there, and It argues my point more persuasively than I could, as you have first-hand experience being the atypical art student in the environment I am addressing. Your pointing out that (1) your [Yale] professors disapproved of your way to finish school and that (2) your experience was “rare” among your classmates is precisely what I am talking about. I thought this was pretty clear.

            I am glad you made it through (as, I’m sure, lots of others do too).

            The only point I can disagree with is “unpaid internships are designed to systematically prevent people like [you] from holding higher-responsibility positions in the arts.” From the standpoint of your resume, who are you? Nothing in your story above has a place on a resume nor can it be known by any institution or business offering internships. Such hypothetical preventive measures are not at all feasible.

            So when I asked, “What kid from a lower socio-economic background has ‘college-level background in art history, performance art, and/or performance art studies’?” The answer would be you, against all odds.

          4. Where we disagree is that I think the arts industry, and publications (like this one does) should actively take a stand against unpaid labor, for the reasons we’ve articulated above – to make the opportunities more equitable.

            Now that I’m getting to the point of being able to influence the hire of assistants or (paid) interns, I would certainly take particular notice of someone who had to earn every aspect of their education and work experience, and consider that evidence that they can make a commitment to follow through a project even when it’s difficult, and also be more understanding of issues that in fact play a massive role in structural issues in the fields where I work (architecture, urbanism, arts.)

            To some degree, the fact that I’ve been able to access my education and job is actually contingent upon being somewhat unusual, a rarity. Being an oddball has been somewhat of a benefit to me, but I think it is a much larger scaled problem that my circumstances are so unusual that word gets around. I, and others, work to make the field more equitable, to the point where someone like me would be one of several typical art workers, not a weirdo. For example, unpaid internships used to be allowed in my place of work, but no longer are, due to someone (prior to me working there) stepping up on that front. Everyone is paid; the job still gets done.

            My story makes its way through on my resume, via the projects I’ve worked on in the past decade and a half. My background was incorporated into my admissions essays or financial aid need statements for degree programs, so they knew. My past four employers all contacted me to offer jobs; I didn’t approach them myself. What does my background offer the institution and businesses that have hired me? My specific point of view was regarded as an asset to the projects I was hired to produce. So apparently, yes, some people figure it out and take notice. Just like you can deduce from someone’s resume that they *probably* came from money.

          5. Thank you for this. Thank you for paying for labor. Thank you for talking about it. Thank you for continuing to talk about it even after you got a job.

          6. Schools have many ways of estimating scholastic aptitude. The actual reason schools ask those questions is because many schools recognize that college is a means to class/economic/social mobility, and one way of getting at that is to ask about the parents education. Many schools look at ‘first family member in college ‘ as a way to get all sorts of diversity in the student body .

            I would disagree that students who come from less advantaged backgrounds would only study degrees that lead to good jobs (whatever they are.) That logic may apply to some, but people have different passions, and skills and abilities, and want to use them

  3. Ah, the art world – made by the 1% and consumed by the 1% (or thereabouts). Wish it at least had the grace to acknowledge its’ aversion to anything meritocratic…

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